England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge Peter Clark
No: UKEATPA/0038/11/RN

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/06/2012

Lord Justice Rimer :

1. This is a renewed application for permission to appeal following Mummery LJ's refusal of permission on the papers on 16 February 2012 on the grounds that the proposed appeal has no real prospect of success. The Civil Appeals Office notified the applicant, Philip Kell, of that decision by its letter of 25 February 2012, which also informed him that any wish by him to make a renewed application must be notified to the court within seven days of 25 February 2012. Mr Kell did not so notify the court within that time but only did so on about 18 March 2012. He also made a witness statement on that date explaining his delay, its essence being apparently that he inadvertently put the letter unopened into his recycling pile, not realising that it was not junk mail until 16 March when he 'decided to tidy up and check the pile of mail that I had placed ready for re-cycling'. I regard that explanation for the delay as unimpressive, based as it is on Mr Kell's own inefficiency in dealing with his mail. I am, however, prepared to accept his error as a genuine one and so will extend his time for making this renewed application.
2. In 2009 Mr Kell brought employment proceedings against his former employer, the Durham Police Authority ('the Authority'). His claims were under five heads. He represented himself at the hearing before the Newcastle upon Tyne employment tribunal, which was presided over by Employment Judge Garside sitting with two lay members ('the ET'). The Authority was represented by counsel. The hearing occupied some five days in November 2010. By its unanimous judgment sent, with reasons, to the parties on 27 January 2011, the ET dismissed four of the claims and recorded Mr Kell's withdrawal of the fifth.
3. Mr Kell sought to appeal against that decision to the Employment Appeal Tribunal ('the EAT'), but His Honour Judge McMullen QC, on the paper sift, concluded that Mr Kell's proposed appeal had no reasonable prospect of success and directed that no further steps should be taken on it. Mr Kell exercised his right to challenge that decision at an oral hearing under rule 3(10) of the Employment Appeal Tribunal Rules 1993 and that challenge was heard by His Honour Judge Peter Clark on 2 November 2011. Mr Kell had the good fortune at that hearing to be represented by counsel, Mr Kibling, appearing under the ELAAS scheme. Mr Kibling, however, failed to persuade Judge Clark that Mr Kell had any arguable points meriting the hearing of an appeal on notice to the Authority. Judge Clark therefore dismissed Mr Kell's appeal. Mr Kell then took the well worn course, followed by so many self-represented litigants disappointed by their original failure before the ET, of seeking to appeal to the Court of Appeal against the EAT's conclusion that he had no arguable grounds of appeal. As I have said, Mummery LJ, a former President of the EAT with vast experience of employment law, was also unconvinced that Mr Kell has an arguable point. Mr Kell has now sought to persuade me otherwise.
4. When pre-reading to the extent that time allowed into the voluminous papers that Mr Kell provided for his renewed permission application, I was unclear as to precisely what his proposed points were. I therefore allowed Mr Kell the full 30 minutes allocated to his application to explain his case. If I may say so, he occupied the time by making a clear and courteous presentation. He was also apparently sensitively responsive to, and understanding of, the observations that I in turn made during the hearing to the effect that (i) there can in principle be no good reason to permit him to appeal to the Court of Appeal with a view to raising points that were not raised before the EAT, let alone to argue points abandoned there; and (ii) that insofar as his complaints about the ET's decision are as to its findings of fact, no appeal ordinarily lies against such findings. Appeals against ET decisions lie only on issues of law, meaning that a proposing appellant has to demonstrate that he has a real prospect of showing that the ET made a material error of law in coming to its decision. Mr Kell indicated his understanding of such points.
5. I need to summarise the background, although will do so only briefly because the story is so fully set out in the ET's 92-paragraph reasons. Mr Kell joined the Authority in 1987 as a police constable. In 2001 he was promoted on a 12-month probationary basis to sergeant, his supervising officer being Superintendent Wood. Concerns emerged as to his behaviour, conduct and performance as a sergeant, which the ET explained in paragraphs 6 to 12 and (in relation to Mr Kell's maintenance of his pocketbook) 19 and 20. As the end of the probationary period approached, Mr Wood was not satisfied with Mr Kell's performance and recommended that his probationary period be extended. It was extended to December 2002. The outcome was that Chief Constable Hall concluded that Mr Kell did not meet the required standard and decided not to confirm his promotion. Although the regulations did not admit an appeal against such a decision, Mr Kell was nevertheless given the opportunity, which he took, of appealing. His appeal was, however, dismissed in February 2003 by Assistant Chief Constable Hogg and he was reduced to the rank of police constable.
6. On 25 March 2003, some five or six weeks later, Mr Kell signed off sick from work. He never returned to work. He was entitled to, and received, sick pay at the full rate of pay for six months and half rate for the following six months. After that he received no pay. Upon and following signing off work, Mr Kell was seen by Dr Callaghan, an occupational health physician, who declared him unfit for work and recommended that he should see a consultant psychiatrist, as he did. Dr El-Sobky saw him twice, his second report of 30 January 2004 concluding that Mr Kell's 'state of mental health is one of paranoid ideation, of a delusional quality. This is a serious state of mental ill health which will render him unfit for work as a Police Officer'.
7. Mr Kell wished to be retired from the Authority on medical grounds under the Police Pensions Regulations 1987. The ET explained, in paragraphs 33 to 35, how that works. The Authority intended to use regulation H1, which required Mr Kell to be referred to a selected medical practitioner. In default of co-operation from him, it would then be open to the Authority to use regulation H4, although Mr Kell would have no right of appeal against a decision made under that regulation. In the events that happened, the Authority did propose to use regulation H4, but it also decided to give Mr Kell a right of appeal against its decision and he claimed that he did wish to appeal. The ET explained in paragraphs 36 to 46 the wholly fruitless course of events over the period June 2004 to July 2007 with regard to a retirement on medical grounds, fruitless because of a lack of co-operation from Mr Kell in relation to the provision by him of the required medical information. The outcome was that, by July 2007, retirement on such grounds was no further advanced and the Authority had instead decided that, in view of Mr Kell's long absence from work, it would instead consider proceeding under the Police (Efficiency) Regulations 2003. The ET also explained the course of that procedure, which appears to have been similarly frustrated by a lack of co-operation from Mr Kell. The eventual outcome was that on 5 September 2008 the Authority informed Mr Kell of its decision under the Regulations requiring him to resign because of his unsatisfactory attendance at work, a notification amounting in effect to a dismissal. Mr Kell was given a right of review, for which he applied. That too was a protracted process, marked again by a lack of co-operation by Mr Kell, who ultimately failed to attend the re-arranged hearing of the review. The outcome of the review was that it was held that the Authority's use of the Regulations was appropriate and the Authority wrote to Mr Kell on 10 February 2009 terminating his employment as from 9 March 2009.
8. It was not in dispute that Mr Kell suffered at the material times from a disability for the purposes of the Disability Discrimination Act 1995, as so found by the ET (Employment Judge Malone) at a hearing in March 2010. The four claims that Mr Kell made to the ET upon which it had to rule were (i) that the Authority had dismissed him for making a protected disclosure (section 103A of the Employment Rights Act 1996); (ii) that the Authority had subjected him to a detriment on the ground that he had made a protected disclosure (section 47B of the 1996 Act); (iii) that the Authority had discriminated against him on the ground of his disability contrary to the 1995 Act; and (iv) another claim of discrimination by the Authority under the 1995 Act.
9. The ET gave a comprehensive summary of the law applicable to Mr Kell's various claims and, in paragraphs 84 to 92, gave succinct conclusions on them. Paragraph 84 reflected that Mr Kell was relying on a long list of letters he had written to the Authority that he claimed were protected disclosures, the ET saying that 'Mr Kell's basic argument is that everything that [the Authority], through his officers, did was illegal in one way or another. However, the specifics are not stated. These are allegations he makes in support of his case and not information.' The ET then, in paragraph 92, identified as being the only document relied upon that could be a protected disclosure that relating to Inspector's Wood's pocketbook, which was not up to date, as it should have been. The ET continued:

'85. … Mr Kell's own pocketbook was not up to date and Inspector Wood required him to complete it. Mr Kell was then a Sergeant who was required to record evidential information in his pocketbook. Inspector Wood was not dealing with evidential material. Mr Kell found Inspector Wood's by going into Inspector Wood's office at night while Inspector Wood was not on duty. He took the pocketbook out of the drawer in his desk. We do not accept that the drawer was open and the pocketbook there for all to see. This was a deliberate act by Mr Kell to obtain some evidence against Inspector Wood for the purposes of, what he thought, his own protection. It was not done in good faith. It is therefore not a qualifying disclosure.

86. We do not accept that there were any protected disclosures upon which Mr Kell can rely. Even if there had been protected disclosures they were not a reason why his employment with [the Authority] was brought to an end. He did not suffer any detriment as a result of making a protected disclosure. It is for Mr Kell to show that there is a real issue as to whether the reason put forward by [the Authority] for his dismissal is not the true reason. Mr Kell has been unable to show that.

87. It is of course accepted that Mr Kell is a disabled person. He has been for a considerable length of time. We do not need to determine whether or not he was disabled for the period March 2004 until 4 December 2005. Further evidence of the disability has not been given to us in any event. However, because of our decision the question is somewhat academic.

88. The sequence of events leading to Mr Kell's dismissal can be summarised ….

89. After Mr Kell's position as a Sergeant was not confirmed, he served for a short time in Sedgefield Police Office. He then went on sick [leave] and never returned to work. [The Authority] sent Mr Kell to see an occupational health physician who sent him for psychiatric assessment. The various allegations that Mr Kell made against Inspector Wood and others were examined by senior officers and found to have no substance. That led to a psychiatric conclusion that Mr Kell was suffering from a paranoid state which made him incompatible to be a police officer.

90. Mr Kell, at the suggestion of Dr Callaghan, went down the path of medical retirement. There is a procedure that has to be followed. The employee wanting to take medical retirement has to be assessed medically. Mr Kell was totally uncooperative in the process. [The Authority] tried on numerous occasions to engage with Mr Kell but he resolutely refused to be engaged with them and to co-operate. Eventually they had to go down the road of dismissing Mr Kell because he would not co-operate. [The Authority bent over backwards to try and help Mr Kell. He refused all help offered to him. He was on the sick [sic] for nearly six years before his employment with [the Authority] was brought to an end.

91. The only conclusion that we can come to, taking all the evidence into account, was that [the Authority] had come to the end of the line. They could not take any further action against Mr Kell to try and alleviate his problems by medical retirement. Mr Kell was dismissed because he was uncooperative and was unable to perform the duties of a police officer, and was dismissed after all avenues had been explored.

92. We dismiss all of these claims for detriment and dismissal in regard to protected disclosure and also in respect of disability discrimination. A Police Officer having the same or similar disabilities to Mr Kell would have been dismissed in the same circumstances. He was not dismissed because of his disability. He was dismissed because of his uncooperative attitude towards [the Authority] and he was unable to continue as a police officer.'

10. Those were, therefore, clear findings of fact that of the multitude of alleged protected disclosures that Mr Kell claimed to have made, only one (that relating to Inspector Wood's pocketbook) was arguably such a disclosure. The ET also, however, found as a fact that Mr Kell's deployment of it was not made in good faith, which meant that the disclosure was not a qualifying one. That was a finding of fact to which the ET was entitled to come. The ET also made a further finding of fact that, even if it was wrong as to none of the disclosures being protected disclosures, the Authority anyway did not terminate his employment because he had made them. That was also a finding of fact to which the ET was entitled to come. The ET also found that Mr Kell was not dismissed because of his disability. He was dismissed – and only after all avenues had been explored - because of his uncooperative attitude and because he was unable to perform the duties of a police officer. The ET was also entitled to make that finding.
11. On the face of it, the ET's decision having been based on findings of fact adverse to Mr Kell, his prospect of being able to mount an arguable appeal to the EAT appears to me to have been microscopic. Judge Clark, in delivering his judgment in the EAT on Mr Kell's rule 3(10) application, explained how Mr Kell's original notice of appeal ran to 174 pages, that his hearing bundle occupied 221 pages, which he then supplemented with two lever arch files running to 607 pages containing six separate applications to adduce fresh evidence on the appeal. Judge Clark was, however, spared the need to go into those applications because Mr Kibling, on Mr Kell's behalf, abandoned them. Mr Kibling also advanced no challenge in relation to the ET's findings in relation to the disability discrimination claims but concentrated his fire simply on the protected disclosure complaints.
12. As to that, Judge Clark was not persuaded that he should look beyond the Wood pocketbook point. He summarised, at paragraph 15, Mr Kibling's submissions but then said, at paragraph 16, that he preferred to focus on the question of good faith. He reminded himself of the guidance as to the criterion of good faith in this context provided by the Court of Appeal's decision in Street v. Derbyshire Unemployed Workers' Centre [2004] IRLR 687, and held in paragraph 17 that there was no basis for any challenge to the ET's finding that Mr Kell was not acting in good faith in relation to his deployment of his points about Inspector Wood's pocketbook. Judge Clark concluded by saying:

'Since the appeal has been narrowed, if I may say so, with good common sense and professional expertise, by Mr Kibling, I am unable to accept his submission that the proposed amended grounds of appeal themselves raise a reasonably arguable point of law which ought to go forward to a further hearing before this Appeal Tribunal and consequently this application, and with it the underlying appeal, fails and is dismissed.'

13. Mr Kell's grounds of appeal to this court complain that the ET did not consider individually the many disclosures that he had made to the Authority by way of what he asserts were protected disclosures; and the grounds list some 16 documents that he claims were such disclosures. He also complains that the ET was in error in its determination that he had not acted in good faith in relation to the pocketbook matter. Mr Kell told me during the hearing that he referred the ET to all these documents, although the ET did not refer in its reasons to any of them individually save that relating to the Wood pocketbook. It appears that Mr Kibling made some attempt before the EAT to cast the protected disclosure net wider than pocketbook point, although Judge Clark noted in paragraph 14 of his judgment that Mr Kibling only did so 'with a degree of vagueness' and Judge Clark described himself as 'not persuaded, either on the basis of the original grounds of appeal, nor the submissions of Mr Kibling that I should look further than the Wood pocketbook matter, in relation to protected disclosure protection.'
14. Mr Kell did not actually refer me to any of the 16 documents which he continues to assert amounted to protected disclosures. Insofar, which was not entirely clear, as he was still maintaining his position in relation to all of them, his stance was, I infer, that I should simply give him permission to appeal to this court and allow him to develop his arguments in relation to each document before the Court of Appeal on the hearing of his appeal. I am not persuaded that I should permit Mr Kell to take any such course. The ET plainly considered all the various documents upon which he relied and it made its findings about them in paragraph 84 of its reasons (see [9] above). To the extent, which is not clear, that Mr Kibling sought to renew Mr Kell's reliance on all such documents before the EAT, Judge Clark was also dismissive of the claim that they amounted to protected disclosures. Given Mr Kell's failure to refer me expressly to any of the 16 documents and endeavour to explain why, contrary to the conclusions of the tribunals below, it or they did arguably amount to such disclosures, I am not prepared to exercise this court's discretionary jurisdiction to allow Mr Kell to open up his arguments about such documents in an appeal to this court. I regard myself as solidly reinforced in that view by the fact that, given the ET's findings of fact as to the reason for Mr Kell's dismissal, such an exercise would anyway be pointless. The ET found as facts that which is recorded in paragraph 86 of its reasons (see again [9] above). Those findings rendered hopeless his reliance on his claimed protected disclosures. They mean that an appeal to the Court of Appeal based on such reliance would have no prospect of success.
15. Mr Kell also wishes to re-open his bid to adduce fresh evidence under four categories, although Mr Kibling had expressly abandoned any bid to rely on fresh evidence before the EAT. Two such categories are said to relate to Inspector's Wood's integrity; and the other two are said to relate to the removal of Mr Kell's personal property at the police station. I understood Mr Kell to accept before me that all these documents could have been obtained before the ET hearing but he says that his failure to obtain them was attributable to his disability. He also wishes to argue that Inspector Wood's evidence at the hearing was, at least in one respect, untruthful. His explanation of the basis of that appeared to me, on the face of it, to be unconvincing. But in any event, insofar as there was any point to be made as to the reliability of Inspector Wood's evidence, Mr Kell could have, but did not, put the relevant point to Inspector Wood when he was cross-examining him. His omission to do so was, he said, again referable to his disability. None of the points in relation to the deployment of the fresh evidence or as to Mr Wood's evidence was deployed, or at any rate persisted in, before Judge Clark. They appear, therefore, to be either new points, or else abandoned ones, that Mr Kell now wants to raise before the Court of Appeal.
16. I can see no reason to allow him to do so. I make clear that I need no persuading that a party before an employment tribunal who suffers from a relevant disability is entitled to have reasonable adjustments made for him so that he is not disadvantaged by his disability in the presentation of his case. I am, however, not persuaded that it is open to a claimant with a disability of the nature from which Mr Kell suffers to advance the assertion at this stage of the proceedings that any shortcoming in the presentation of his case was referable to his disability and that he should therefore now, on a second appeal to the Court of Appeal, be given a free hand to re-open the evidential material that was before the ET in the hope, presumably, that this court may be moved to direct a fresh hearing of Mr Kell's complaints. Mr Kell has done no more than to self-certify that the competence of his conduct of the proceedings before the ET was hampered by his disability. I am not persuaded that, in the circumstances that I have related – not least the fact that he is now seeking to raise matters not argued before the EAT – there is any basis at all for giving permission to Mr Kell to re-open before this court all the matters that he wishes to argue. To do so would be grossly unfair to the Authority. Mr Kell has had his 'day in court' before the ET, in fact he had some five days there. He had every opportunity to deploy his case before it. The outcome was that the ET made clear and careful findings of fact that were wholly adverse to Mr Kell. They meant and mean that Mr Kell's complaints have now come to the end of the road. His bid to take the matter to the EAT was manifestly mistaken. His bid to take it to the Court of Appeal is even more so.
17. I refuse Mr Kell permission to appeal.